Shulou(Shulou.com)11/24 Report--

CTOnews.com, November 22, the General Administration of Market Supervision now issues a public announcement on soliciting opinions on the Anti-unfair Competition Law of the people's Republic of China (revised draft for soliciting opinions), requiring operators not to engage in unfair competition by making use of data and algorithms, technology, capital advantages, and platform rules.

According to reports, the main contents of this revision include:

(1) to improve the anti-unfair competition rules of the digital economy and standardize the behaviors that disturb the competition order in the development of the new economy, new business type and the new model.

(2) in view of the outstanding problems existing in the practice of supervision and law enforcement, supplement and improve the existing forms of unfair competition.

(3) to fill the legal gap and add new types of unfair competition behavior.

(4) to improve legal liability in accordance with the requirements of strengthening anti-unfair competition.

CTOnews.com learned that China's Anti-unfair Competition Law was formally implemented in 1993 and revised twice in 2017 and 2019. As the basic law to regulate the behavior of market competition, it plays a very important role in creating a fair competition market environment and protecting the legitimate rights and interests of operators and consumers.

According to reports, the General Administration of Market Supervision launched the revision of the Anti-unfair Competition Law in December 2021. A leading group on the revision of the Anti-unfair Competition Law has been set up to carry out overall promotion and in-depth study. On the basis of comprehensively combing and summarizing the practice of anti-unfair competition, studying and drawing lessons from the experience of foreign legislation, and fully soliciting the opinions of local market regulatory departments, members of the inter-ministerial joint meeting against unfair competition and relevant departments, the first draft of the revised draft was drafted.

Since then, relevant experts and scholars, local market regulatory departments and industry enterprises have been invited to demonstrate the revised draft one by one, fully adopt the opinions of all parties, further revise and improve it, and form a draft for soliciting opinions.

The main contents of the modification are as follows:

(1) to improve the anti-unfair competition rules of the digital economy and standardize the behaviors that disturb the competition order in the development of the new economy, new business type and the new model. Combined with the characteristics of competition behavior in the field of digital economy, the revised draft aims at the unfair competition behavior in the acquisition and use of data and the unfair competition behavior implemented by algorithms, as well as new types of unfair competition behaviors such as hindering open sharing. At the same time, considering the complexity of the identification of unfair competition behavior in the field of digital economy, it stipulates the factors to judge whether it constitutes unfair competition behavior, so as to enhance the predictability of the system and the standardization of law enforcement. In addition, it also stipulates the responsibility of platform operators to strengthen competition compliance management and promote social co-governance against unfair competition.

(2) in view of the outstanding problems existing in the practice of supervision and law enforcement, supplement and improve the existing forms of unfair competition. First, to improve the provisions of commercial confusion, combined with the needs of law enforcement practice, to supplement the types of identification that constitute commercial confusion, to add the names of self-media and application software, and to sell confused goods, as well as the act of providing convenient conditions for the implementation of confusion into the scope of regulation, and distinguish between subjective intention and set the corresponding legal liability. The second is to make prohibitive provisions on bribery in the commercial bribery clause. The third is to refine the false propaganda provisions, describe the behavior types of commercial publicity, provide reference for distinguishing commercial publicity from advertising in law enforcement practice, and strengthen the crackdown on organizations to help false propaganda. It is clearly forbidden to help other operators to carry out false propaganda by organizing false transactions, fictitious evaluation and so on. Fourth, strengthen the protection of trade secrets and stipulate that the state promotes the establishment and improvement of a trade secret protection system that integrates self-protection, administrative protection and judicial protection of trade secrets. The fifth is to bring the behavior of instructing others to carry out commercial defamation into the scope of regulation.

(3) to fill the legal gap and add new types of unfair competition behavior. First, we will increase the act of damaging fair trade and strengthen the protection of the legitimate rights and interests of the main bodies of small and medium-sized markets. Considering that in the current regulatory practice, the market subjects with comparative advantages, in order to obtain illegal interests or improperly expand competitive advantages, unreasonable restrictions or unreasonable conditions are imposed on the business activities of market entities such as small and medium-sized enterprises and operators in the platform, which makes it difficult for small and medium-sized enterprises to start and operate, seriously disturbs the order of fair competition in the market, and hinders entrepreneurial innovation. The draft classifies the typical behaviors of damaging fair trade, enumerates six types of behaviors, such as "choose one from two" and compulsory tie-in, and provides guidance on how to judge the "comparative advantage" in the supplementary provisions. Second, the new malicious trading behavior, in view of the deliberate implementation of malicious transactions, trigger other operators to be punished by the relevant rules, thus hindering and destroying the normal operation of other operators to be summarized and prohibited.

(4) to improve legal liability in accordance with the requirements of strengthening anti-unfair competition. First, it has set corresponding penalties for new illegal acts such as damage to fair trade, the implementation of malicious transactions, and new types of network unfair competition. Second, the legal liability for some illegal acts has been added, and administrative penalties have been set for those who know or should know that others have committed confusing acts, still sell confused commodities, or deliberately provide convenient conditions for carrying out confusing acts, and increase penalties for accepting bribes in commercial bribes. The third is to scientifically adjust the amount of punishment for illegal acts. According to the needs of law enforcement practice, in order to ensure that the excessive punishment is equal, the lower limit of punishment for false propaganda has been lowered; at the same time, the circumstances are particularly serious and the nature is particularly bad for the implementation of acts that harm fair trade and unfair competition on the Internet. those who seriously damage the order of fair competition or social and public interests shall further intensify their crackdown.

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